remanded EB-3 Case: Print Production

U.S. Citizenship 
and Immigration 
Services 
In Re: 11911534 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for a Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT . 1, 2020 
The Petitioner, a print and document solutions business, seeks to employ the Beneficiary as a print 
production supervisor. It requests classification of the Beneficiary as a skilled worker under the third 
preference immigrant category. Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 
8 U.S.C. § 1153(b)(3)(A)(i). This employment-based "EB-3" immigrant classification allows a U.S. 
employer to sponsor a foreign national for lawful permanent resident status to work in a position that 
requires at least two years of training or experience. 
The Director of the Nebraska Service Center denied the petition on the ground that the Petitioner did 
not reveal the existence of a familial relationship between its co-owner and the Beneficiary on the 
labor certification and, in connection with that omission, did not establish that the proffered position 
was a bona fide job opportunity open to U.S. workers. On appeal the Petitioner asserts that the 
Director's decision was incorrect because the definition of family relationship was unclear at the 
time the labor certification was completed and that the Director did not take into account the 
Department of Labor's audit of the labor certification application before approving it. 
Upon de nova review, we will withdraw the Director's decision and remand the case for the 
consideration of two other issues - whether the Beneficiary meets the experience requirement of the 
labor certification and the requested visa classification and whether the Petitioner has established its 
ability to pay the proffered wage. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains 
an approved labor certification (ETA Form 9089) from the U.S. Department of Labor (DOL) . See 
section 212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). By approving the labor certification, the DOL 
certifies that there are insufficient U.S. workers who are able, willing, qualified , and available for the 
offered position and that employing a foreign national in the position will not adversely affect the 
wages and working conditions of domestic workers similarly employed. See section 
212(a)(5)(A)(i)(I)-(II) of the Act. Second, the employer files an immigrant visa petition with U.S . 
Citizenship and Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, 
if USCIS approves the petition, the foreign national may apply for an immigrant visa abroad or, if 
eligible, adjustment of status in the United States. See section 245 of the Act, 8 U.S.C. § 1255. 
II. ANALYSIS 
A. Bona Fides of the Job Offer 
The instant petition, filed on December 24, 2015, was accompanied by a labor certification that was 
filed on April 15, 2014, and approved by the DOL on August 3, 2015. The Director issued a notice 
of intent to deny (NOID) on January 21, 2020, stating that USCIS records indicated the Beneficiary 
was the sister-in-law of the Petitioner's co-owner,I ,I a familial relationship which was 
not revealed on the labor certification. The Director stated that the Petitioner concealed this family 
relationship by answering "No" to the question at section C.9 of the labor certification which asked 
whether the employer is a closely held corporation, partnership, or sole proprietorship in which the 
Beneficiary has an ownership interest, or whether there is a familial relationship between the owners, 
stockholders, partners, corporate officers, incorporators, and the Beneficiary. Concealing the 
familial relationship in this case, the Director continued, called into question whether the proffered 
position was a bona fide job offer open to any qualified U.S. worker. The Petitioner was afforded 33 
days to submit additional evidence. 
The Petitioner responded to the NOID with evidence indicating that the Beneficiary is the wife of 
I Is cousin, not his brother. The Petitioner asserted that there was no regulation or 
guidance regarding the definition of familial relationship at the time its labor certification was filed, 
and thus the extended family relationship between the Beneficiary and the Petitioner's co-owner did 
not warrant an answer of "Yes" to the question at C.9 of the labor certification. 1 Furthermore, 
regardless of any family connection in this case, the Petitioner maintained that it demonstrated the 
bona fides of the job offer in the audit conducted by the DOL during the labor certification process. 
The Petitioner submitted a copy of a letter from DOL dated September 15, 2014, informing the 
Petitioner that its petition had been selected for audit, requesting the submission of a list of 
documents, and advising that the failure to submit such documentation would result in the denial of 
the labor certification application. The Petitioner also submitted a copy of its letter to the DOL's 
audit team, dated October 9, 2014, which listed all of the documents submitted in response to the 
audit notice. The DOL subsequently approved the labor certification application. 
In denying the petition on March 10, 2020, the Director stated that the intention of the question at 
C.9 of the labor certification is to insure that the job opportunity is open to all workers, which would 
require an answer of "Yes" if there is any family relationship between the Petitioner and the 
Beneficiary. That answer would allow the DOL the opportunity to determine whether the family 
relationship influenced the openness of the job opportunity. The Director acknowledged the 
documentation relating to the DOL's audit that was submitted in response to the NOID, but claimed 
1 DOL issued a PERM FAQ on the interpretation of family relationship on July 28, 2014, noting in part: "A familial 
relationship includes any relationship established by blood, marriage, or adoption, even if distant. For example, cousins 
of all degrees, aunts, uncles, grandparents and grandchildren are included. It also includes relationships established 
through marriage, such as in-laws and step-families. The term 'marriage' will be interpreted to include same-sex 
marriages that are valid in the jurisdiction where the marriage was celebrated." 
See https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm (last accessed September 17, 2020). 
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that the Petitioner did not submit evidence to establish the outcome of the audit. The Director 
concluded that the Petitioner did not meet its burden of proof and that because the Beneficiary has a 
familial relationship with the Petitioner's co-owner the Petitioner did not establish that the proffered 
position was a bona fide job opportunity open to all workers. 
On appeal the Petitioner asserts that the Director's analysis was faulty because it denied the petition 
on the sole ground that there is a familial relationship between the Petitioner and the Beneficiary 
without properly considering the record as a whole in determining the bona fides of the job 
opportunity. Of particular concern was the Director's conclusion that the Petitioner did not submit 
the outcome of the DOL audit, since the outcome of that audit was the approval of the labor 
certification application. We agree that the Director's analysis was faulty based on the facts in this 
case. The DOL conducted a fairly extensive audit to determine whether the labor certification 
application should be certified. 2,3 The record shows that the Petitioner submitted a comprehensive 
reply that addressed all of the documentary requests in the audit. The DOL was evidently satisfied 
that the audit response demonstrated that the job opportunity was open to all workers because the 
labor certification application was approved. The DO L's certification of the ETA Form 9089 was in 
fact the outcome of the audit which the Director mistakenly stated was not submitted by the 
Petitioner. Given the DOL's audit and approval of the labor certification, the Director's decision 
that the proffered position was not a bona fide job opportunity open to all workers is not well 
grounded. Accordingly, we will withdraw the Director's decision. 
On the present record, however, we cannot sustain the appeal because there are evidentiary 
deficiencies concerning other issues, as discussed below. 
B. Beneficiary's Experience 
To qualify for classification as a skilled worker a beneficiary must have at least two years of training 
or experience. 8 C.F.R. § 204.5(1)(3)(ii)(B). A beneficiary must also meet the specific educational, 
training, experience, or other requirements of the labor certification. Id. All requirements must be 
met by the petition's priority date,4 which in this case is April 15, 2014. See Matter of Wing's Tea 
House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977). Qualifying experience must be 
2 The DOL's audit requested extensive documentation of the Petitioner's recruitment process, including (1) the resumes 
and applications of all U.S. workers who applied for the position and a report with specific infcnmation about the step­
by-step review of each application; (2) declarations from the employer and the foreign worker about whether the 
employer received any payments from the foreign worker or a third party in connection with the labor certification 
process, and documentary explanations of any such payments; (3) documentary evidence of the business necessity for 
the education, experience, training and/or other requirements for the proffered position; and (4) documentation 
explaining why the U.S. applicants for the proffered position were deemed not qualified and could not have become 
qualified after a reasonable time on the job. 
3 The family relationship in this case is somewhat attenuated and DOL had not issued its related FAQ prior to the filing 
of the labor certification application. DO L's FAQ now makes clear that even more attenuated relationships should be 
disclosed at C.9 of the ETA Form 9089 to allow the DOL to determine the bonafides of the job offer. 
4 The priority date of a Form I-140 petition is the date the underlying labor certification is filed with the DOL. See 
8 C.F.R. § 204.5( d). 
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documented by letters from current or former employers providing the name, address, and title of the 
writer and a specific description of the duties performed. 8 C.F.R. § 204.5(g)(l). 
The labor certification in this case states that the minimum experience required for the proffered 
position of print production supervisor is 24 months of work in a commercial print shop, and asserts 
that the Beneficiary met this requirement by working at a business called I I in 
I I Pennsylvania, from March 1, 2008, to May 15, 2010. The record indicates that this 
business, apparently no longer in operation, was owned by I I the same relative of the 
Beneficiary who co-owns the Petitioner. As part of its initial evidence the Petitioner submitted a 
letter froml I "to confirm that [the Beneficiary] was employed as a print shop worker from 
March 1, 2008 to May 15, 2010," along with a copy of one pay statement from January 2010. 
In the denial decision the Director stated that the Beneficiary acquired work experience at I I 
Das alleged in the labor certification and the letter from I J but made no formal finding as 
to whether that employment constituted qualifying experience. The Director simply concluded that 
because of the familial relationship between the Beneficiary an~ lthe Beneficiary did not 
qualify for the proffered position. 
Therefore, we will remand this case for the Director to determine whether the Beneficiary meets the 
minimum experience requirement of the labor certification and the requested visa classification. The 
Director may wish to request additional independent objective evidence from the Petitioner to verify 
prior employment as one pay statement would be insufficient to demonstrate a two year period of 
full-time employment. 
C. Petitioner's Ability to Pay the Proffered Wage 
To be eligible for the visa classification it requests for the beneficiary, a petitioner must establish 
that it has the ability to pay the proffered wage stated in the labor certification. As provided in the 
regulation at 8 C.F.R. § 204.5(g)(2): 
The petitioner must demonstrate this ability at the time the priority date is established 
and continuing until the beneficiary obtains lawful permanent residence. Evidence of 
this ability shall be either in the form of copies of annual reports, federal tax returns, 
or audited financial statements .... In appropriate cases, additional evidence, such as 
profit/loss statements, bank account records, or personnel records, may be submitted 
by the petitioner or requested by [USCIS]. 
In this case the proffered wage is $70,491 per year and the priority date is April 15, 2014. Thus, the 
Petitioner must establish its continuing ability to pay the proffered wage from April 15, 2014, up to 
the present. 
The Director did not address the issue of the Petitioner's ability to pay the proffered wage in the 
denial decision. On remand, therefore, the Director shall also consider whether the evidence of 
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record establishes the Petitioner's continuing ability to pay the proffered wage. If deemed necessary, 
the Director may request additional evidence from the Petitioner. 
III. CONCLUSION 
We will remand this case to the Director for farther consideration of (1) whether the Beneficiary has 
the requisite experience to meet the terms of the labor certification and to qualify for skilled worker 
classification, and (2) whether the Petitioner has established its continuing ability to pay the 
proffered wage from the priority date of the petition onward. Upon determination of these issues the 
Director shall issue a new decision. 
ORDER: The Director's decision of March 10, 2020, is withdrawn. The matter is remanded for 
the entry of a new decision consistent with the foregoing analysis. 
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